Judge urged to bar Neudorf's expert witness

The Vancouver Province, Nov 6 1998

Jack Keating, Staff Reporter The Province

A U.S. expert witness is a "highly partisan advocate" for the plaintiff and should not be allowed to testify in a lawsuit against singer Sarah McLachlan, B.C. Supreme Court was told yesterday.

Gerald Eskelin, a musicologist who has received two Grammy-award nominations as a conductor of the Los Angeles jazz choir and has testified in cases for Stevie Wonder and Michael Jackson, is scheduled to be called as a witness next week.

Over the objections of Darryl Neudorf's lawyer Jonathan Simkin, Justice Bruce Cohen allowed McLachlan's lawyer, Jennifer Conkie, to argue a motion that a report by Eskelin contains more opinion than unbiased analysis.

"It's so tainted with bias that the entire report should be excluded from evidence. And he should not be giving testimony at the trial," Conkie told the judge.

She said Eskelin went beyond his expertise when he suggested that a "personality trait" of McLachlan prevented her from giving credit to Neudorf.

"There were times when I thought I was reading a psychology report," Conkie said.

"He's a partisan advocate. It's critical that expert witnesses not become advocates."

Neudorf is suing McLachlan and Nettwerk Productions Ltd. for copyright infringement and a share of royalties, claiming he co-wrote and co-produced four songs on her 1988 debut album, Touch. It sold 600,000 copies.

The songs were Vox, Steaming, Sad Clown and Strange World.

Eskelin's report said Neudorf was a "dominant influence in the room." His experience -- and her lack of it -- was a key factor in "creating a commercial release."

"He (Eskelin) wasn't there," said Conkie. "He doesn't know what went on. He's not met Ms.  McLachlan. This psychological editorial comment is outside his expertise."

She said McLachlan will talk about her songwriting skills in the trial.

"Ms. McLachlan is going to have a lot to say about what she thinks about songwriting," said Conkie.

"She will say that she had always been slow to write songs, and is slow to this day."

Simkin, who was granted time to respond to Conkie's application, will argue for Eskelin's inclusion when the trial resumes Monday.